This appeal under section 410, Cr. P. C. Is directed against the judgment of the learned Ist Additional Sessions Judge, Larkana, whereby he convicted the appellant for offence under sections 403(i), 335 and 302, P. P. C. And sentenced him to undergo R. I. For seven years for murdering his wife Mst.
Shani under grave and sudden provocation, for two years for causing grievous injury to Mohammad Siddiq under grave and sudden provocation and to undergo for imprisonment for life for killing Allah Dino, father of Mohammad Siddiq respectively. The sentences are to run concurrently.
2. The brief facts of the case are that one Akram son of Fakir Allah Dino, by caste Panhwar resident of village Allah Bux Panhwar taluka Kambar of District Larkana lodged his first information report on 31-1-1973, at 3-00 p.m, at Police Station Kambar of District Larkana, to the effect that Mohammad Siddik is his brother and both of them are cultivators. Their father Allah Dino aged 60 years is also alive and grazes his own cattle and is also residing together with the complainant. About 12 months back, Hassan and Sher Mohammad both sons of Allan and Allan son of Sher Mohammad had suspected Mohammad Siddik, to be on illicit intimacy with Mst. Shani alias Shahar Bano but they had not declared the woman as "Karl". Being annoyed on this, Hassan along with his wife shifted to District Dadu side. Thereafter in order to clear the position, Mohammad Siddik: had taken "Holy Qur'an" according to the community custom and had taken oath on daughters to Allan and others in the village and assured them that the allegation of illicit intimacy was incorrect. About four months back, Hassan along with his wife returned and started residing with his father and brother in the village and all were residing according to their community custom and were visiting each other with their work. It was in the morning on the day of incident, when, Mohammad Siddik told the complainant that he would go along with Hassan and others in their lands for thrashing the grass.
The complainant after cutting grass came to his house from his land. At about early noon time, he heard cries of "Murder!" "murder!" raised by the brother Mohammad Siddik. He came out and found Shahnawaz and Ghulam Kadir standing near shop of Shahnawaz. They saw that Allan, his sons Hassan and Sher Mohammad, with hatchets, followed by Salah were chasing Mohammad Siddiq from their houses. He was injured, Salah was instigating Allan not to spare him. Mohammad Siddik while raising cries of "Murder murder" came running towards them due to fear and entered into the house of Ghulam Kadir. They also went there and stood at the door outside. In the meanwhile, complainant's father Allah Dino also arrived there and on seeing the accused gave lathi blows to accused persons and also abused them. All the three accused on instigation of Saleh gave hatchet blows to Allah Dino, who fell down. Hassan (Appellant) thereafter gave him hatchet blows on his neck and chest. They challenged them not to come near them and asked them to produce Siddik, who was to be murdered. The complainant' party also challenged them in return and continued raising cries. All the accused persons returned to their house. Allah Dino was found dead, as the result of injuries, and therefore they were setting his eyes and arms, when they heard cries of "murder murder" of Mst. Shani coming from the house of accused Allan, Hassan and others. She was crying for saving her. The complainant and Ghulam Kadir went running to their house and found that all the above four accused persons were dragging Mst. Shani from courtyard of house of the accused Allan and were taking her into a room from where the cries were beard in a suffocated tone. The accused persons came out after a short while from the room and the complainant and Ghulam Kadir returned and stood at the door so that the accused persons might not enter the house to cause loss to any life. The village people and women at that time were also passing by the street. Thereafter accused Hassan and Sher Mohammad took out hatchets and stood eastern corner of the house and were seen with bloodstains on their head and face respectively. After some time, they went away to their houses and in a short while they learnt that accused persons had murdered Mst. Shani. Then they sent her mother who returned. Crying and weeping and confirmed that her daughter was lying murdered in the room. Mohammad Siddik then . Informed the complainant that he was thrashing the crop with Hassan and others in their field, from where he took grass and thrown it into their house, when all of sudden, he found Hassan, Ailan and Sher Muhammad giving "Hakkals" with hatchets in their hands that he would not go. He ran due to fear of his life, when Hassan and Sher Mohammad gave him hatchet blows from sharp side of their hatchets which hit him on back of his neck and head. Saleh, who was standing at the entrance of the house was instigating accused persons to kill him. Mst. Shani, is wife of Hassan, daughter-in-law, of Allan, sister of Sher Mohammad and daughter of Saleh. The accused were already suspecting and they therefore, conspired with each other and sharp-sided hatchet blows to Mohammad Siddik with intention to kill him. Allah Dino stood there in order to save his son, who was also murdered by them by giving hatchets blows on instigation of Saleh in the street near the shop of Shah Nawaz. The complainant due to fear, did not allow Siddik to go out for lodging complaint or getting treatment. After two hours, he went to village of their respectable persons, Mr. Deedar Hussain Abro in his village but he had gone to Larkana. Thereafter the complainant went to Police Station where his report was registered.
3. The F. I. R. Was recorded by the A. S. I. Hameedullah P. W. 12, who was incharge at Kambar Police Station. After fifteen minutes of lodging of the F. I. R. The appellant Hassan was produced at Police Station by Nabi Bux and Jalaladdin. He secured blood-stained hatchet, blood-stained clothes viz. "Angosha" and waistcoat from him and arrested him and prepared such Mashirnama Exh.
32. It would be noteworthy that the appellant had a hatchet blow on his right hand which fact was mentioned in the above said Mashirnama. He sealed the blood-stained articles and recorded state--ments of Nabi Bux and Jalaluddin. He then proceeded to scene of offence and met Mohammad Siddik P. W. 5 on way to it. He was accompanied by Nangar and Kouro. He had injuries by his person. He recorded his state--ment and prepared such mashirnama on injuries on his person in presence of mashirs Aligul and Mohammad Yousif. He sent injured Siddik to Medical Officer Kambar for examination and treatment. He then reached the scene of offence of village Ali Bux which was shown to him by the complainant Akram and was situated in the street of that village where dead body of Allah Dino was lying with injuries on his person. There was blood near dead body which was secured and sealed. He prepared Mashirnama Exh.
25. He prepared inquest report Exh. 26, in presence of same mashirs and sent the dead body to Medical Officer Kambar for post-mortem examination through P. C. Mohammad Bachal. He then went inside the house of appellant. Hassan in the same village and saw dead body of his wife Mst. Shani with injuries on her person in the room of that house. There was also blood which he secured, sealed and prepared such Mashirnama Exh. 27, in presence of same mashirs and also prepared inquest report Exh. 28 of her dead body. He then sent this dead body also to Medical Officer Kambar for post-mortem examination through P. C. Abdullah. He thereafter recorded statements of witnesses Ghulam Kadir, Shah Nawaz, Mst. Arbab and arrested accused Sher Muhammad, who had also injuries on his person. He led him in presence of Mashirs Biro Khan and Gelo Khan to his house in the same village and produced a blood-stained hatchet from the hedge of his house, which he secured, sealed, and prepared such Mashirnama Exh.
29. The S. H. O. Rajah Ali then arrived it the scene of offence who took over investigation from him and arrested accused Allan who appeared before him. He interrogated him. Allan also produced a hatchet which was not blood-stained. He secured it and prepared such Mashirnama Exh. 30 in presence of Mashirs Biro Khan and Gelo Khan. He then referred accused Sher Mohammad to Medical Officer Kambar for examination, treat--ment and certificate and sent blood-stained articles to the Chemical Analyser Karachi, for examination and report and challaned the accused.
4. The prosecution case is mainly based on statements of eye-witnesses Mohammad Siddik, Ghulam Kadir, Shah Nawaz, Masbir Biro Khan, A. S. I. Hameedullab and S. H. O. Rajah Ali, investigating officers and recovery.
5. The other three accused however denied all the allegations against them and claimed to have been falsely implicated on account of their relation--ship with the appellant. The present appellant pleaded grave, and sudden provocation as he had seen Mohammad Siddik in compromising position with his wife Mst. Shani whom he killed and injured Siddik succeeded to escape. He followed him, when in the street Allah Dino father of Siddik attacked him, with his lathi and he under same provocation gave him injuries which resulted in his death. He further stated that none of the accused was present at the time of incident. He immediately went to Police Station and informed Police that his report was not registered. He was simply detained until Akram lodged his F. I. R.
Whereafter he was arrested. The trial Court observed that the evidence set up by the prosecution was not free from doubt whereas the defence version that Siddik, taking advantage of the fact that the accused persons being out for thrashing out their paddy crop, had gone to their house for having an intimate meeting with Mst. Shani found quite plausible and therefore acquitted Sher Mohammad, Allan and Saleh and convicted the present appellant as above.
6. We have heard Syed Sarfaraz Ahmad, the learned counsel for the appellant and Mr. Agha Saifuddin, the learned counsel for the State. The learned counsel for the appellant contends that the incident which resulted in death of deceased Allah Dino also occurred during course of same transaction when the appellant had lost self-control and was following Mohammad Siddik, whom was seen by him to compromising position with his wife Mst. Shani. He also contends that there was no intention to kill Allah Dino, father of Mohammad Siddik or any other person from family of Mohammad Siddik on the part of appellant otherwise complainant Akrani, who is a real brother of Siddik, was available and had in fact obstructed the appellant to have excess to Mohammad Siddi.k who had gone into house of Ghularn Kadir as Akram was standing at the door of Ghulam Kadir stopping the applicants' entry to the house. The appellant could have easily attacked him as he was obstructing his way but still no injury has been inflicted to him. It would be thus clear that Allah Dino was inflicted injuries when he attacked him and thereby provoked the appellant who had already lost his self-control.
7. Mr. Agha Saifuddin, does not support the conviction and sentence of the appellant under section 302, P. P. C. For murder of Allah Dino, as he was inflicted injury during the same transaction, when the appellant had lost self-control, thus plea of grave and sudden provocation was available to him even for murder of Allah Dino particularly when the deceased abused him and attacked him with lathi.
8. There is no dispute that the deceased Mst. Shani and Allah Dino died on the day and places of incidents due to hatchets injuries as stated in the F.
1. R. The question therefore for determination is whether the case of the appellant would come within purview of section 304(1) of murder of Allah Dino also. In this regard whether occular evidence has been led by the prosecution has been considered. By the trial Court to be highly improper and therefore disregarded. The trial Court has rightly held the appellant inflicted injuries to Allah Dino when he was following his son Siddik who was found by the appellant in compromising position with his wife Mst. Shani, whom he had murdered and was deprived of his self-control. It is also clear from the circumstances that he had injured Mohammad Siddik and was following him, when he came across Allah Dino deceased.
9. It would be worthwhile to mention that the earlier case of the prosecution as set up in the F.
1. R.
Was that Mohammad Siddik entered into the house of Ghulam Kadir, when 'he was being followed by the appellants and in the meanwhile Allah Dino arrived there and on seeing the accused he gave blows to accused and abused them. This was nothing short of adding fuel to the fire as the appellant who had already lost his self-control because of the fact of Mohammad Siddik who is son of Allah Dino would be naturally provoked more when father of the paramour of his wife would attack, abuse and even inflict injury on his person. It was under the circumstances that he was given hatchet blows by the appellants which resulted in his death. It would therefore, be too much to expect from a person acting under a grave and sudden provocation to at once restrain and control himself once he has been completely deprived of self-control to an extent of killing his wife.
We are therefore, of the. View that Allah Din was killed under grave and sudden provocation during the same transaction of events when he himself provided provocation to the appellants b attacking and abusing him. The plea of grave and sudden provocation would be: therefore available to the appellant for his murder also.
10. For the foregoing reasons we are of the view that the conviction of the appellant under section 302, P. P. C. And sentence is not legally maintainable. The same is therefore, altered to one under section 304(! P. P. C. And his sentence is reduced to a period of ten years. His conviction under sections 304(1), P. P. C. And 335, P. P. C. For killing Mst. Shani and injuring Mohammad Siddik in our opinion are in accordance with law and the same are accordingly maintained. All the sentences would run con--currently. In the result the appeal is partially allowed.